Garland v Commissioner of Police, NSW Police Force

2019 application for personal firearms licence and 2020 NCAT Decision

1. Mr Garland lodged a new application for a Category ABGH firearms licence on 31 January 2019. This application was refused by the Commissioner and the refusal affirmed on internal review.
2. Mr Garland sought administrative review in this Tribunal and the matter came before Senior Member Isenberg on 8 July 2020 (2020 NCAT Decision). The Senior Member considered the charges and outcomes of those matters, including following the District Court appeal, and concluded at [62]-[63]: The underlying principles of the Act stated in s 3(1) emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety; strict controls on the possession and use of firearms are imposed in the interests of public safety. In light of the Applicant's numerous contraventions of the Act, which concern matters relevant to a personal firearms licence such as safe storage and registration requirements, I cannot not be satisfied that the serious failures committed by the Applicant will not be repeated, or that his reason for seeking a firearms licence outweighs the need to ensure public safety. One element in assessing the likelihood of risk is by reference to relevant prior conduct: Brosowski v Commissioner of Police [2003] NSWADT 182 at [41]. The proven charges largely relate to inadequate safe-keeping and record-keeping of firearms. I observe that these charges represented a large number of breaches which were amalgamated into those charges. In light of the Applicant's failure to properly register and secure numerous firearms previously within his possession under a range of licences and permits, I have significant reservations that he will comply with the strict requirements of the Act in the future. I regard these transgressions as serious and very significant in determining whether the Applicant should be granted a licence. In addition, I observe that the multiple findings I have made of breaches of the Act and Regulation on the civil standard.
3. Mr Garland made a fresh application for a Category ABH firearms licence on 6 March 2023. On 10 March 2023 the Commissioner refused the application on the basis that there had been "insufficient passing of time" since the breaches of the Firearms Act 1996 in 2015. The Adjudicator took the view that the public could not be confident that Mr Garland was a responsible person who would comply with firearms laws and firearms licence conditions. The Adjudicator decided that it would be contrary to the public interest to issue Mr Garland with a firearms licence.
4. On internal review, the Senior Adjudicator observed that Mr Garland had not come to the notice of Police for any "antisocial, violent, drug or alcohol related behaviour" and that Mr Garland appeared to be of good character. The Senior Adjudicator considered that the offences referred to above at [8] concerned the "The Stockade" dealership rather that Mr Garland's individual firearms licence, but said: …your conduct in failing to adhere to the strict controls and requirements prescribed by the Act and regulations in your capacity as a firearms dealer cannot be divorced from the potential for such conduct to be repeated if you were granted a personal firearms licence.
5. The Senior Adjudicator raised concerns about the "numerous contraventions" of the Act that were discovered as a result of the audit referred to at [5], including "the considerable amount of firearms that remain unaccounted for". The Senior Adjudicator formed the view that Mr Garland "may not appreciate the extent and significance of the contraventions of the firearms legislation that were proved against [him] and the potential risk that those contraventions created to the wider community".
6. The Senior Adjudicator said that despite the time that has passed since the revocation of Mr Garland's individual firearms licence: …"you may not have acquired a satisfactory appreciation of the seriousness of the offences that we found proved against you. The potential risk to the public that may have resulted from your failure to strictly observe your duties and responsibilities was significant. It has not been countered by any remedial action, conduct or remorse, which would provide the Commissioner with any confidence that you accept responsibility for those contraventions and inadvertences."

Administrative review jurisdiction

1. The Tribunal's jurisdiction to review a decision of the Commissioner of Police to refuse to issue a firearms licence is derived from section 75(1)(a) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.
2. When determining an application for an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: section 63 of the Administrative Decisions Review Act 1997.
3. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
4. The Tribunal is to approach the issue of whether the firearms licence should be granted to the Applicant afresh, without any presumption as to the correctness of the decision under review: see McDonald v Director-General of Social Security (1984) 1 FCR 354, 357.

Relevant legislation

1. The Firearms Act 1996 establishes a licensing and permit scheme for the possession and use of firearms in NSW. Unless otherwise stated, all references to legislative provisions in these reasons for decision are to the Firearms Act 1996.
2. The underlying principles set out in section 3(1) the Firearms Act 1996 include: …(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and…
3. The objects of the Firearms Act 1996 in section 3(2) include …(b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner…
4. On receipt of an application for a firearms licence, the Commissioner has the discretion to issue the licence or to refuse the application: refer to section 11(1) of the Firearms Act 1996.
5. The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be "contrary to the public interest": section 11(7) of the Firearms Act 1996.

Firearms licences and permits

1. It is a criminal offence to possess or use a firearm unless authorised to do so by a licence or a permit. The maximum penalty is 5 years, but 14 years for a pistol or prohibited firearm. Refer to section 7 and 7A of the Firearms Act 1996.
2. There are offences in section 50B, which prohibit a person from giving possession of a firearm or a firearm part to another person unless the person is authorised to possess the firearm by a licence, permit or other authorisation.

Firearms registration and inspection

1. It is an offence under the Firearms Act 1996 to supply, acquire, possess or use an unregistered firearm: refer to section 36(1). The maximum penalty is 5 years imprisonment for any firearm but if the firearm in question is a pistol or a prohibited firearm it is 14 years.
2. A person with a registered firearm must produce it for inspection on request by a police officer: section 37(1)(a). If the firearm is supplied, lost or stolen the person must notify the Commissioner within seven days: section 37(1)(b).

Safe storage

1. Each licence is subject to a condition that the licensee complies with the safe keeping and safe storage requirements of the Firearms Act 1996: refer to section 19(2)(a).
2. There is a criminal offence in section 39(1) of the Firearms Act 1996: (1) A person who possesses a firearm must take all reasonable precautions to ensure - (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to possess the firearm. Maximum penalty - 50 penalty units or imprisonment for 2 years, or both, if it is established beyond reasonable doubt that the firearm concerned was a prohibited firearm or a pistol, or 20 penalty units or imprisonment for 12 months, or both, in any other case. Note. Reference to a pistol includes a prohibited pistol.

Defacement of firearms or firearm parts

1. It is a criminal offence for a person to use, supply, acquire or possess a defaced firearm or firearm part, that is, a firearm or firearm part that has any number, letter or identification mark defaced or altered on it: refer to section 66(1)(b) and 66(3).

The obligations of licenced firearms dealers

1. Part 5 of the Firearms Act 1996 sets out the requirements imposed on licenced firearms dealers. These include:

• Records must of all transactions and dealings concerning firearms or firearms parts must be kept in accordance with section 45 including the details required to be recorded about the acquisition, receipt, supply or transfer of a firearm or firearm part: refer to sections 45(1) and 45(2).
• Each record relating to a transaction or dealing concerning a firearm, a spare barrel for a firearm, a firearm frame or a firearm receiver must be sent to the Commissioner for inclusion in the Register of Firearms: section 45(1)(b).
• Records concerning the acquisition, receipt, supply or transfer of a firearm, firearm frame or firearm receiver must be entered within 24 hours of the transaction, subject to the regulations: section 45(3).
• These records must be produced to a police officer on demand as well as all firearms or firearm parts and information about those items: refer to section 45(6) for further detail.
• The dealer must label each firearm in their possession showing the entry number in the record that must be kept and also the identifying number of the firearm: section 47(1).
• If the dealer becomes aware of the loss, theft or destruction of any firearm or firearm part in their possession they must notify the Commissioner within 24 hours: section 47(3).
• The records must be kept in a place of safe keeping on the premises specified in the licence but not in a place of safe keeping in which firearms are kept: section 47(4).
• Firearms displayed on the dealer's premises must be secured so as to reasonably prevent their removal by persons other than the dealer or an employee of the dealer (section 48(1)) and must be under the immediate supervision and control of the dealer or their employee and not displayed to the public unless reasonable precautions are taken to prevent the firearm from being stolen (section 48(2)).

The 2020 NCAT Decision

1. As discussed below at [73] Mr Garland has been unsuccessful in a previous Tribunal administrative review proceeding in 2020 (2020 NCAT Decision). In that case he sought review of a decision made by the Commissioner on 23 May 2019 to refuse him a Category ABGH individual firearms licence. The matter came before Senior Member Isenberg and a series of findings were made including about the outcomes of the charges referred to above at [8]-[9].
2. In written submissions in the current proceeding, Mr Kable, for the Applicant, said that: …while the last tribunal judgement was somewhat scathing of [Mr Garland's] understanding and acceptance of the findings against him, his latest statement acknowledges those findings and his acceptance of them. Those submissions then stated: While we note that there may not be any evidence of a change if [sic] circumstances, the applicant has provided a statement which varies from what was provided on the last occasion. The simple fact that he is putting himself before the tribunal is, we submit, an acknowledgement of the findings on the last case and an inference that he has learnt from that experience.
3. It is convenient to set out the factual findings made by Senior Member Isenberg. Paragraph references are to the published reasons for decision. Those findings were: 1. Possession of unregistered firearms in breach of section 36(1) at [27]-[28]: One charge of 'use unregistered firearm - not prohibited firearm/pistol' was found proven. This concerned the possession of 60 unregistered firearms. 2. Failure to produce firearms for inspection in breach of section 37(1)(a) at [29]-[30]: Mr Garland was unable to find and produce to Police five specified firearms, including shotguns and a semi-automatic rifle. Mr Garland had notice of the audit and the audit was delayed at his request but he was still unable to get the business premises in order. The Tribunal found on the balance of probabilities that Mr Garland was in breach of section 37(1)(a). 3. Safekeeping contraventions in breach of section 39(1)(a) at [31]-[49]: one charge of 'not keep firearm safely - not prohibited firearm/pistol' was found to be proven. This was in relation to a timber gun rack containing firearms which was unsecured to the floor of the customers' side of the counter. The rack was about six metres from the front door and out of the immediate view of staff. It also related to a 'rotisserie style' timber gun rack holding 20 firearms on top of the glass counter which allowed customers to touch and handle firearms. The charge also related to three unsecured firearms found by Police behind the front counter. 4. Failure to take all reasonable precautions to ensure firearms were not stolen or lost in breach of section 39(1)(b) at [32] because 78 firearms remained lost and had not been located. I note the evidence of Senior Constable at [43] below that the number of lost and unaccounted for firearms is now 69. I also note the submissions made by Mr Kable about Senior Member Isenberg's findings that almost 315 firearms were unaccounted for and on the balance of probabilities Mr Garland's conduct in not being able to explain the location of a large number of firearms was a breach of section 39(1)(b). This finding is contested by the Applicant in the present proceeding. Mr Kable relied on the comments made by the Local Court Magistrate in the reasons for decision which stated at [28] that: The evidence certainly seemed to suggest that the record keeping system at the Registry had been at times sub-optimal… Mr Kable also referred the comments of Senior Member Isenberg at [43] of the reasons for the 2020 NCAT Decision, which explained that the online entry system Firearmslink, which firearms dealers were required to use, was "far from perfect, and could give rise to errors". He submitted that the evidence was inconclusive and that the Applicant could not be implicated and nearly all of the errors were made by the Firearms Registry. I note that the Senior Member went on at [44] to explain that it was incumbent on Mr Garland to ensure he also maintained the required hardcopy record and that he was unable to provide "a clear paper trail, as no proper acquisition and disposal book (PAB28 register) had been maintained". I also record here the observations made in the Police Facts (at page 90 of the section 58 bundle) that when Firearmslink became operational in 2002, "The Stockade" stopped using the PAB28 acquisition and disposal books "which they were always required to have and maintain". 1. Not take all reasonable precautions to ensure a firearm not come into possession of a person not authorised to possess it in breach of section 39(1)(c) at [35]: The 'dip sample' resulted in Police discovering that five firearms had been categorised incorrectly, with each being categorised in a lesser category. The Senior Member was satisfied on the balance of probabilities that Mr Garland's conduct in miscategorising firearms was in breach of section 39(1)(c). 2. Contravention of requirement that displayed firearms are secured to prevent their removal by anyone other than the dealer or their employee in breach of section 48(1) at [36]-[39]. Senior Member Isenberg found on the balance of probabilities that the unsecured gun rack was a breach of section 48(1). 3. Record keeping in breach of section 45(1)(b) at [40]-[49]: Mr Garland was found guilty of one charge of failure to ensure that a record of each transaction or dealing is sent to the Commissioner. The Senior Member observed that the Local Court Magistrate found Mr Garland was unable to say how the 60 firearms the subject of the section 45(1)(b) offence came to be on his premises and that this was "one of the numerous deficiencies in the Applicant's record-keeping" that was proven in the Local Court proceedings. 4. Theatrical firearms contraventions under section 50B(1) and section 66(1)(b) at [50]-[51]: Mr Garland was found guilty of three charges of giving possession of a firearm to unauthorised persons. Mr Garland gave three firearms to the Sydney Theatre Company. None of these firearms had been modified to solely use blank cartridges and were capable of firing live ammunition. The Senior Member found on the balance of probabilities that the serial numbers on these firearms had been obliterated, in contravention of section 66(1)(b). 5. Explosives and the use of telephone books at [52]-[54]. The Senior Member observed that Mr Garland had permits for explosives and gunpowder. However, the Senior Member observed that there was storage of explosives in the workshop area and Mr Garland had routinely test-fired firearms into telephone books inside the workshop area of the premises. The Senior Member could not conclude on the evidence whether the telephone books constituted a safe bullet stop but found on the balance of probabilities that the practice had risk. There was also video footage showing encouragement of a person to be in close proximity of a deliberate explosion.

The parties' case

1. No oral evidence was adduced at hearing. Both parties relied on the documentary evidence and written submissions before the Tribunal and both made lengthy oral submissions. The admitted documents consisted of: the section 58 documents filed by the Respondent, including supplementary section 58 documents; a letter or statement from each of the Applicant and his partner, Ms Alexeeff; written submissions from both parties; the relevant Local Court judgment in the criminal proceedings against the Applicant; and the statement of Detective Sergeant Vedder, dated 20 November 2023.
2. Some references to the evidence referred to in oral submissions are made in these reasons under the heading 'Submissions'.

Missing firearms, the Detective Sergeant Vedder statement and corresponding submissions

1. There was some discussion before me about the current status of any missing firearms. When the matter came before Senior Member Isenberg, there were 78 firearms were lost and still not located.
2. According to the statement of Detective Sergeant Nathan Vedder, filed in this proceeding, 69 of these firearms remain lost or unaccounted for, according to a search he conducted on 31 October 2023 of the Integrated Licensing System maintained by the Firearms Registry. Four have been recovered, two are not required to be registered, two have been destroyed and one has been recovered.
3. Mr Winram submitted that the 78 firearms unaccounted for were proven to the criminal standard, but there were 315 firearms were unaccounted for due to incomplete records. He contended that as found by Senior Member Isenberg at [34] of the 2020 NCAT Decision that it had been open to Mr Garland to produce evidence about the whereabouts of the firearms and he had failed to do so. I note that Senior Constable Jackson described the Applicant's records as "virtually non-existent".
4. It was Mr Garland's position that the overall number of firearms that could not be located was 78 at the time of the Local Court proceedings, that is, that the balance of the 315 firearms had in fact been located. Mr Kable submitted that clearly records had been kept as some firearms were traced because the 315 firearms unaccounted for was reduced to 78. I asked where the evidence was for that contention and Mr Kable said it was an "inference" that could be drawn.
5. I note at this point that Senior Member Isenberg rejected this argument at [33] of the 2020 NCAT Decision. She stated that the suggestion that it was not substantiated that almost 315 firearms remained unaccounted for was "clearly not the case". Mr Kable said if that was the case he was at a loss as to why criminal charges had not been brought in relation to the balance of the 315 firearms.
6. Mr Winram submitted that if it was merely a problem with the Firearms Registry records, the Applicant's records would have been able to identify the location of the firearms. Mr Winram said that section 45 of the Firearms Act 1996 required certain records to be kept by a licenced firearms dealer and sent to the Commissioner. Two sets of records are therefore kept, one by the dealer and one by the Commissioner. He said that if Mr Garland had maintained those records firearms would not be missing or if they were missing there would be a record that could show that to be the case.
7. Mr Winram said that when explaining what could be done differently, Mr Kable, for the Applicant, said that his client could have communicated with the Firearms Registry to make sure Mr Garland's records accorded with the Registry records. He said that Mr Kable did not suggest his client accepted that his records were virtually non-existent.
8. Mr Winram also referred to the argument made by Mr Garland in the Local Court proceedings about the Police bringing and dumping firearms and parts on the Applicant as Police did not have enough space for them. The Magistrate found that Mr Garland was not able to identify where the 60 unregistered firearms the subject of the charges came from. The onus was on him to show he was not in possession of them and he had failed to do so.
9. Mr Winram submitted that there was no new evidence before me that would disturb the findings of Senior Member Isenberg.

Charges that resulted in not guilty verdict

1. Mr Vedder's statement provided information about the charges referred to above at [6]. At [9] Detective Sergeant Vedder said that Mr Garland was charged with the following offences which went to trial and were found not proved and dismissed:

• Fail to produce registered firearm for inspection on demand
• Not prevent theft/loss of firearm - prohibited firearm
• Possess unauthorised firearm
• Possess unauthorised pistol
• Firearms dealer not maintain firearm safe in working condition

1. This accords with the Criminal History filed by the Respondent, which records not guilty verdicts for the above charges.

Mr Garland's letter dated 28 August 2023

1. Mr Garland relied on his one page written letter, dated 28 August 2023, in which he stated he has had a lot of time to consider his situation and would have acted differently. He said he has learnt his lesson. He stated in the letter: I have made every attempt to ensure that I have conducted myself in an exemplary manner since this whole matter started, and I believed that I had done so previously, but I was obviously wrong. It was never my deliberate intention to do wrong, but as I have learnt, I was not doing things as they should have done.
2. Mr Garland explained in the letter that he seeks a personal firearms licence in order to participate in target shooting and hunting activities. He stated he would like the "opportunity to show that [he has] reformed [his] ways and in no way [poses] a danger to the public".

Character reference from Mr Garland's partner

1. Ms TK Alexeeff, Mr Garland's partner provided what could be described as a character reference or brief statement, dated 28 August 2023. In that letter, Mr Alexeeff stated that she had been in a relationship with Mr Garland for more than 20 years and she found him to be "an honest and trustworthy person".
2. Ms Alexeeff makes similar comments to those made by Mr Garland in his statement: that Mr Garland has had a long time to consider his situation and concluded he would do things differently if he had his time again. She stated he is remorseful and contrite because of the position in which he has placed himself and those closest to him. She stated he has "learnt the error of his ways". She stated that if granted a firearms licence Mr Garland could return to the sport he loves.

For the Applicant

1. Mr Kable submitted that Mr Garland has had many years to evaluate what happened given his firearms licence was revoked in 2017 and the Category ABGH firearms licence application refusal was affirmed by this Tribunal in 2020. He said that Mr Garland is remorseful and understanding of the past failures. Mr Garland acknowledges he could have done things differently in the light of hindsight and has learnt his lesson. Mr Kable submitted that Mr Garland should be judged as of the date of the hearing.
2. Mr Kable submitted that Mr Garland had numerous interactions with the Firearms Registry and passed previous firearms inspections up to the audit in 2015. He had satisfied the conditions for virtually all the permits and licences that can be held.
3. Mr Garland acknowledged contraventions of the Firearms Act 1996. In respect of the carousel on the counter with 20 firearms, it was not secured to the counter. However, it had been there for some period of time and had not been an issue in previous inspections and no firearms had been lost or stolen from it.
4. Mr Kable submitted that the wording of the regulation that applied to providing firearms for theatrical use was "somewhat vague" and has since been amended. He acknowledged more should have been done and Mr Garland should have made more attempts to find out the true meaning of the legislation. This is a reference to the Applicant's argument at trial that the Regulation merely required that the firearm could fire a blank cartridge of the same calibre not that it can only fire a blank cartridge. This argument was rejected by the Magistrate and found by Senior Member Isenberg to be contrary to the focus on safety in the principles and objects of the Firearms Act 1996.
5. Mr Kable pointed out that all of the charges which were proved were dealt with under section 10, including by way of entering into a good behaviour bond. He also said that no charges were brought against his client for matters arising from possession of explosives.
6. Mr Kable said that Mr Garland had a close relationship with Police and that firearms that individuals wished to surrender were taken to "The Stockade". Items of no value would be set aside for destruction but the destruction truck would not come around for some time and they were not put into the register. Mr Kable referred to comments made in the Magistrate's judgment at [8].
7. Mr Kable addressed observations made by Senior Member Isenberg in the 2020 NCAT Decision that his client had a dismissive attitude to the Firearms Dealer Information Booklet. He said his client raised issues with the booklet itself and he had responded in the way he had on advice. The issue is dealt with at [23] of the 2020 NCAT Decision where Mr Garland conceded that he had glanced at parts of but did not fully read the booklet.
8. Mr Kable argued that Mr Garland can be trusted to possess firearms safely because he has been accountable for the past and accepts that he should have been more vigilant in conducting his business and completing the paperwork. He said that the recordkeeping issues were not as bad as was made out by Police.
9. Mr Kable said that his client acknowledged that "things could have been done differently" and that he understands his shortcomings and he "wouldn't do the same things again".
10. Mr Kable said all that the Applicant had to support his current application was the statement of his client and his partner, Ms Alexeeff which addressed the past offences and the passage of time since the suspension of his licence in 2015. He emphasised his client had expressed remorse and had learned his lesson.
11. Mr Kable said that his submission referred to at [44] about what more his client could have done or done differently was his own response and not that of his client. He said that his client had not be requested for cross-examination and had provided a written statement and that statement had not been challenged. I raised with Mr Kable that he could have called his client to give evidence in the current proceeding and he had elected not to.

For the Respondent

1. Mr Winram, for the Respondent, submitted that Mr Garland had not ensured that firearms was stored safely at "The Stockade". There were a number of gun racks that were not secured or attached to anything. He also referred to the test firing of firearms into telephone books and the images in Senior Constable Jackson's statement do not show any bullet recovery box that Mr Garland claimed was used with the telephone books acting as a bullet stop.
2. Mr Winram referred to the comments of Judicial Member Montgomery in Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182, that the likelihood of risk must be assessed by reference to the applicant's prior conduct (at [41]) and submitted that this provides the best guidance for the assessment of future risk. Mr Winram referred to the Applicant's argument that much time has passed since the matters arising from the audit of "The Stockade". Mr Winram submitted that the mere passage of time was not enough to satisfy the Tribunal that any risk to public safety has been abated. What the Tribunal should be satisfied of is that Mr Garland has an appreciation of the importance of strict compliance with the firearms legislation. I will refer further to Brosowski under 'Consideration' below.
3. Mr Winram said that Mr Garland had provided a brief statement in general terms. Mr Garland stated that he would have done things differently, but Mr Winram posed the question: what would Mr Garland have done differently? He submitted that the statement did not answer that. Mr Garland refers to how he ran the business but does not specify what changes he would make.
4. Mr Winram also referred to the internal review request letter from Mr Garland, dated 6 April 2023. In that letter Mr Garland stated: The breaches were in relation to my Dealer's Licence and not in relation to my personal firearms licence. The whole court process highlighted some deficiencies in the way I did things and I have learnt valuable lessons from that process and I will never re-offend. The application I made is for my personal firearms licence only, and I again affirm that I do not have any intention of ever again pursuing a Firearms Dealer's Licence.
5. I note that later in the same letter Mr Garland stated: I humbly ask that you take into consideration the punishment I have already endured because of a mistake I made in relation to one of my professional licences, and that you have compassion in granting me the ability to pursue my sport and hobby in the few years I probably have left in me.
6. Senior Member Isenberg rejected the argument that the contraventions that were the subject of criminal proceedings in the Local Court could be confined to how Mr Garland managed the firearms dealership (refer to [24] of the 2020 NCAT Decision). Senior Member Isenberg found that offences against Mr Garland personally were proven including that:

• A person must not possess a firearm that is not registered (section 36)
• A person who possesses a firearm is to take all reasonable precautions to ensure its safekeeping (section 39)
• Three charges of a person must not give possession of a firearm to another person unless the other person is authorised to possess the firearm (section 50B(1)).

1. Senior Member Isenberg referred to the decision of the Appeal Panel in Hijazi v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 82 at [22]. The Appeal Panel in that case held that the Tribunal should have taken all contraventions into account, irrespective of the capacity in which the Applicant breached the legislation, even if they concerned other permits and a firearms dealer's licence. Senior Member Isenberg agreed that all relevant conduct must be considered ([24] of the 2020 NCAT Decision).
2. Mr Winram made the point that Mr Garland appeared to again argue in his internal review request letter that the contraventions were in respect of his dealer's licence and should be distinguished because he now only seeks a personal firearms licence. He also pointed out that the contraventions were not in respect of one of Mr Garland's professional licences, given that Mr Garland held a number of licences in connection with his business.
3. Mr Winram referred to the written judgment of the Local Court Magistrate which stated the Sydney Theatre Company was supplied with firearms capable of live fire. He submitted that this posed a significant risk to the public, both to actors and attendees of the theatre performance. In the Local Court proceedings Mr Garland argued his view that what the law required was that the firearm be able to fire blank cartridges designed for that particular firearm not that it must not be able to fire live ammunition (refer to [71] of the Local Court judgment). Mr Garland's evidence was that no modifications were generally required as a blank round had the same dimension as a live round (at [71]). The Magistrate rejected this interpretation, finding that the meaning of the Regulation was that the firearm must be modified so that only blank cartridges can be used (at [73]).
4. Mr Winram also emphasised that there were 300 charges laid against Mr Garland that were then grouped together and synthesised into a small number of sequences.

Treatment of 2020 NCAT findings

1. In Garland v Commissioner of Police [2020] NSWCATAD 210 (the 2020 NCAT Decision) Senior Member Isenberg decided an application by Mr Garland for review of a decision made by the Commissioner on 23 May 2019 to refuse him a Category ABGH individual firearms licence.
2. In reaching that decision, the Senior Member considered the circumstances which gave rise to revocation on 28 June 2017 of Mr Garland's personal firearms licence and business authorities, including the fact that Mr Garland was charged with 397 firearms related offences on 31 January 2017 and the outcomes of those charges.
3. As a matter of law, I consider that I am not bound by the findings of Senior Member Isenberg because in conducting a review of a reviewable decision made by an administrator I am exercising administrative and not judicial power or quasi-judicial power. It follows that there is no issue estoppel that arises, meaning that parties are not "estopped" or prevented from challenging the earlier findings made in the 2020 NCAT Decision. Refer to the comments made by the Appeal Panel in Spuds Surf Chatswood Pty Ltd v PT Ltd (No 4) [2015] NSWCATAP 11 at [64].
4. Mr Garland accepts most of the facts as found by Senior Member Isenberg. However, he takes issue with any factual finding that there were 315 firearms unaccounted for.

Findings of fact in the current application for review

1. I considered the evidence and submissions before me and make the following findings about the audit and suspend and seizure operation conducted by Police at "The Stockade" in 2015.

Possession of unregistered firearms

1. I find that Mr Garland was in possession of 60 unregistered firearms in breach of section 36(1) of the Firearms Act 1996. He made admissions to this effect to Police and the possession of the 60 unregistered firearms was also found proven in the Local Court with one charge of 'use unregistered firearm - not pistol/prohibited firearm' proven to the criminal standard.

Record keeping breaches and failure to produce firearms

1. Mr Garland failed to adequately keep the records he was required to keep as a licenced dealer and this resulted in one charge of 'firearms dealer not ensure records sent to Commissioner' being found proven to the criminal standard. I find that "The Stockade" stopped using the PAB28 acquisition and disposal books. I am satisfied Mr Garland could not establish how the 60 unregistered firearms came to be on his premises and that he was in breach of section 45(1)(b).
2. I find that Mr Garland was unable to find and produce to Police five specified firearms in breach of the requirement in section 37(1)(a) he produce firearms for inspection when requested to do so by a police officer. Mr Garland admitted that this was the case in an ERISP interview.
3. I am satisfied that the failure to keep the PAB28 acquisition and disposal books resulted in failing to meet the tagging requirements of section 47(1) of the Act because the tags must record the entry number in the PAB28 book.
4. I am satisfied that there were errors in records kept at "The Stockade" including that five firearms were assigned an incorrect lower 'Category', including a semi-automatic rimfire rifle being categorised as Category A when it is Category C prohibited firearm.
5. I find that the records of "The Stockade" contained numerous errors including errors as to the correct make, model, calibre and barrel length of firearms.
6. I find that Mr Garland did not use the required Ammunition Register but that the "The Stockade" used their own sheets and customers were allowed fill in the entries. These sheets were kept in a folder on the front counter of the shop and completed in view of persons at the counter. I find this practice was contrary to the requirement in section 47(4) to keep the records in a place of safe keeping.

Safe keeping of firearms and security of displayed firearms

1. I considered the allegations that Mr Garland failed to store firearms safely at "The Stockade". I note that the Local Court rejected evidence about firearms in a glass cabinet but accepted that the gun rack on the floor on the customer's side of the counter and the 'rotisserie' style gun rack sitting on the counter were not stored in accordance with level 7 requirements. The Magistrate made a factual finding that one strong person or two people working together could have physically removed the rack on the counter and its contents. The rack on the floor could be removed be tilting a filing cabinet it was attached to by "simply tilting the cabinet forward to allow the chain to be dragged under it". The offences 'firearms dealer fail to ensure security of displayed firearm' and 'not keep firearm safely - not pistol / prohibited firearm' were found proven.
2. I am satisfied that the two gun racks were not secured and kept safely as they were not affixed to the actual premises and the methods used to secure them amounted to a breach of the safe keeping requirement in section 39(1)(a) and the section 48(1) requirement that dealer's display firearms secured in a manner to prevent their removal by anyone other than the dealer or their employee.
3. I accept that three firearms were found by Police "standing up behind the counter of the store" and "within view and within reach of any customer standing at the end of the counter", as stated in the Police Facts sheet. These firearms had been left out by an employee several days beforehand after conducting a firearms safety course at "The Stockade". I note that for the purposes of the criminal charges the Magistrate was not satisfied that the firearms where there behind the counter when the shop was open for business.
4. I find that a revolver was found during the 'dip sample' audit on 1 September 2015 was stored together with six live ammunition rounds in a storage tin in the pistol/revolver strong room at "The Stockade", contrary to the requirement to store ammunition in a locked container separately from the firearm the ammunition is for (refer to the requirements in sections 40(1)(d) and 41(1)(c)).

Lost or stolen firearms and giving firearms to unauthorised persons

1. I am satisfied that as at the date of the hearing 69 firearms remain lost or unaccounted for, reduced from a previous number of 78. I find that Mr Garland failed to take all reasonable precautions to ensure firearms were not stolen or lost in breach of section 39(1)(b).
2. I make no factual findings about the balance of the 315 firearms as I could not reach a conclusion about those firearms on the basis of the evidence before me.
3. I am satisfied that Mr Garland provided three firearms to the Sydney Theatre Company that were not modified so that they could only use blank cartridges. I find that these firearms were capable of firing live ammunition and I note that the three firearms were subjected to Forensic Ballistic examination which confirmed this to be the case. I note that this resulted in the Local Court finding two counts of 'give pistol to person not authorised by licence/permit' and one charge of 'give firearm to person not authorised by licence/permit' proven. I agree with the interpretation given by the Magistrate that the meaning of the Regulation must be that modification was required so that only blank cartridges could be used. I consider that Mr Garland contravened section 50B(1).
4. I am concerned that in an ERISP interview Mr Garland told Police that he only modified semi-automatic and fully automatic firearms he provided as a theatrical armourer and he did not think all firearms provided needed to be modified. He acknowledged he would not modify other types of firearms, such as revolvers, shotguns and bolt action rifles, and these firearms he supplied were capable of firing live ammunition.

Explosives and testing of firearms into telephone books

1. I accept that Mr Garland used a box with telephone books to shoot into in order to test firearms within his workshop at "The Stockade" without an effective bullet recovery box or bullet stop. Police express the opinion in the Facts Sheet that there was a real danger that any bullet may not be effectively contained in the telephone books, including because they were "so heavy and dense with lead". I note that Mr Garland made admissions about this practice in his ERISP interview. I accept that this practice carried risk and note that Police told Mr Garland he must cease it.
2. I accept that SafeWork Inspectors conducted their own audit of "The Stockade" on 31 August 2015. Certain explosives with military markings were located. Items were taken by the Australian Defence Force Explosive Ordinance Disposal Technicians and other items by the NSW Police Force Rescue Bomb Disposal Unit. I accept that Mr Garland was authorised under his firearms dealer's licence to possess up to 50 kilograms of explosive black powder but he had 59 kilograms and also other small quantities in various containers on the premises. Police noted that there were welding tools, grinders and other metal working machines in the same area and it was the same room where Mr Garland was shooting live ammunition into telephone books.

Public interest

1. The public interest is a broad concept and incorporates issues beyond character: Commissioner of Police v Toleafoa [1999] NSWCATAP 9 at [25]. Considerations can include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.
2. Previous cases have addressed the question of how the Tribunal is to assess risk to public safety. In Ward v Commissioner of Police, New South Police Service [2000] NSWADT 28 Deputy President Hennessy said: The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
3. In Webb v Commissioner of Police New South Wales Police [2004] NSWADT 110 Judicial Member Montgomery said: The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr Webb's licence is reinstated. In determining this issue it is my view that it is necessary to adopt a balanced view of risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration.
4. According to Martin v Commissioner of Police, New South Police Force [2017] NSWCATAD 97 at [64]-[66], the Tribunal should approach the question of risk in a "nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety".
5. Deputy President Hennessy addressed the comments she made in Ward in the case of AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5, stating the phrase "virtually no risk" "should not be understood as a judicial gloss" on the plain meaning of the statute and the decision-maker should apply the relevant test by "exercising a judgement based on all the evidence": refer to [8] and [10].
6. Any contraventions of the firearms legislation and risks that arose in the context of Mr Garland's actions in operating a licenced firearms dealership are clearly relevant to the question of whether or not he should now be granted a personal firearms licence. The two cannot be divorced from each other and all contraventions of the Act should be considered, given that a licence may be revoked if the licensee contravenes any provision of the Act: refer to section 24(2)(b)(ii) and the comments of the Appeal Panel in Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82 at [46].
7. Mr Kable is correct that the point in time at which I must assess whether the issue of the licence to Mr Garland would be contrary to the public interest is the at the time of the hearing. Mr Garland's case is that:

• He has reflected on his past conduct and would have acted differently.
• He has learnt his lesson.
• He was wrong when he believed he had conducted himself in an exemplary manner previously.
• He learnt that he was not doing things as they should have done.
• He would like the opportunity to show that he has reformed and poses no danger to the public.

1. Throughout the hearing Mr Kable said his client acknowledged that he could have done things differently. This phrase was repeated a number of times in oral submissions.
2. What was lacking was evidence from Mr Garland about what he understood to be the gravity, seriousness and potential far reaching consequences of the conduct the subject of the above factual findings.
3. I was troubled by Mr Garland's practice of supplying firearms capable of live fire as part of his theatrical armourer business. He took a particular view about the meaning of the relevant Regulation that he did not need to modify these firearms.
4. I am concerned in particular by the following features of the past conduct of Mr Garland in 2015: 1. He possessed 60 unregistered firearms and due to the failure to comply with the record-keeping requirements for firearms dealers could not establish how these firearms came to be on the premises of "The Stockade". 2. He did not store firearms safely at "The Stockade" because two gun racks could be removed and were not affixed to the actual premises. He also stored a revolver together with its ammunition in the same storage tin. 3. As at the time of the hearing 69 firearms remained lost and unaccounted for from the audit. 4. Mr Garland, in the capacity of theatrical armourer, provided three firearms to the Sydney Theatre Company that were capable of firing live ammunition as was his practice at the time for firearms that were not semi-automatic or fully automatic firearms. 5. Mr Garland fired bullets into telephone books without an effective bullet recovery box or bullet stop to test firearms in his workshop at "The Stockade".
5. As Judicial Member Montgomery stated in Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [43] the safe storage of firearms is "a central and critical objective of the legislation".
6. I considered that these aspects of the case carry significant weight in addressing the public interest and whether these is a real and appreciable risk to public safety.
7. I considered the comments of the (then) Administrative Decisions Tribunal in the case of Davos v Commissioner of Police, NSW Police Force [2013] NSWADT 7 at [117]. In that case the Applicant was charged with 'possess unauthorised prohibited firearm' and the Tribunal made the following observation: In my view, it is essential that licensees comply with the legislative requirements. The legislature has determined that imposing strict controls on the possession and use of firearms is the best way of improving safety. The most fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. The legislation requires strict compliance precisely because misuse of firearms can result in catastrophic consequences.
8. Mr Garland now submits in this proceeding that he would do things differently. I agree with the Commissioner that Mr Garland has not set out what he would do differently or what changes he would make to his approach to the possession and use of firearms and his compliance with legislative requirements.

ORDERS 1. The decision made by the Commissioner of Police on 10 March 2023 to refuse Mr Garland's application for a Category ABH firearms licence is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2025